The rise and rise of litigation tech

Lord Justice Briggs’ final report on the Civil Courts Structure Review was published on 27 July 2016. Central to the report was the creation of an online court, pushing litigation further into the realms of technology. Technology has already established itself within litigation but how much further will it integrate over the coming years?

Social media is a good starting point, as it has become a powerful tool for defendants fighting injury claims. Claimants who exaggerate or falsify their injuries can be caught out by social media posts and pictures showing activities they claim they are unable to do. Findings from such sites have been having an impact on the amount of damages awarded over the past few years, and recent cases have even seen claimants held in contempt based on social media evidence.

However, as more defendants use social media searches, the more claimants control their online presence. As such, the future may see a decline in the number of exaggerated and fraudulent claims discovered via social media.

Coding and negotiation

Companies create and store a large number of electronic documents. When disputes arise, these documents need to be searched for relevancy. Over the years, the courts have developed ways to deal with the vast volumes of electronic documents, and the technology surrounding this is continuing to develop. Predictive coding, for example, is a system which ‘learns’ which documents are relevant to a dispute, before speedily reviewing large amounts of electronic documents and highlighting those that are relevant.

In Pyrrho Investments Ltd v MWB Property Ltd [2016] EWHC 256 (Ch) the court approved of the use of predictive coding software in suitable disclosure exercises. Where appropriate, this technology can reduce costs and increase accuracy. It is likely that in the future more and more cases will use coding where large volumes of documents are required to be reviewed.

Online negotiation tools enable parties to attempt confidential settlement. Lord Justice Briggs’ report refers to one of these services, namely Cybersettle. This service creates a binding settlement when parties’ offers match or overlap and does not reveal parties proposed settlement figures if no agreement is reached.

This confidentiality protects parties’ positions, meaning that genuinely attempting settlement is very low risk. Online negotiation is an attractive tool and pilots currently being held by firms mean we are likely to see an increase in their use.

Email service

While e-filing has been accepted by the courts, many firms are still reluctant to accept service of documents via email. Concerns over emails getting lost in spam filters, being mistakenly deleted, or left in unchecked inboxes have prevented firms from embracing this possibility.

However, as more parts of the litigation process are conducted via emails (such as negotiating deadline extensions and making or accepting part 36 offers) and firms move to paperless systems, it seems possible that firms will need to start accepting service in such a way. For this, email technology must advance to enable a more secure and foolproof system for receiving service of documents.

It is clear that technology has already established itself within litigation and the two will continue to integrate further over the coming years.

Amber Jenner is a trainee solicitor at Kennedys and a member of Tomorrow’s Forum of Insurance Lawyers

@TomorrowsFOIL www.tomorrowsfoil.org.uk